1
EXHIBIT 10.23
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN REDACTED PROVISIONS OF
THIS AGREEMENT. THE REDACTED PROVISIONS ARE IDENTIFIED BY THREE ASTERISKS
ENCLOSED BY BRACKETS AND UNDERLINED. THE CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
--------------------------------------------------------------------------------
OEM ORBIX DEVELOPMENT AND RUNTIME AGREEMENT
BY AND BETWEEN
IONA TECHNOLOGIES, INC.
AND
ACCELERATED NETWORKS, INC.
DATED
DECEMBER 17, 1999
--------------------------------------------------------------------------------
2
IONA OEM ORBIX(R) DEVELOPMENT AND RUNTIME LICENSE AGREEMENT
DESKTOP\\.ACC-IONA AGMT (EXH 10.23).DOC(ACC-IONA AGMT (EXH 10.23).DOC)
THE ORBIX(R) DEVELOPMENT AND RUNTIME SOFTWARE (THE "SOFTWARE") AND THE
ACCOMPANYING DOCUMENTATION (THE "RELATED MATERIALS") (TOGETHER WITH THE
SOFTWARE, THE "PRODUCT") ARE PROTECTED BY UNITED STATES, IRISH AND INTERNATIONAL
COPYRIGHT LAWS, AND THE COPYRIGHTS AND OTHER INTELLECTUAL PROPERTY RIGHTS ARE
OWNED BY IONA TECHNOLOGIES PLC OF XXX XXXX XXXXXXXX, XXXXXXXXXXX XXXX, XXXXXX 0,
XXXXXXX. THE PRODUCT IS LICENSED BY IONA TECHNOLOGIES INC., 000 XXXX XXXXXX,
XXXXXXX, XX 00000, XXX ("IONA") TO ACCELERATED NETWORKS OF 000 XXXXXXX XXXXX,
XXXXXXXX, XX 00000 ("Customer"). THE PRODUCT IS COPYRIGHTED AND LICENSED (NOT
SOLD).
1. OWNERSHIP
This is a License Agreement. IONA represents and warrants that it has
all the intellectual property and other rights necessary to enter into
this Agreement and to grant to Customer the licenses identified.
Customer acquires no title, fight or interest in the Software or Related
Materials other than the license granted herein by IONA and the title to
the media upon which the Software is delivered.
2. PROPRIETARY NOTICES
Customer will not remove any trademark, tradename, copyright notice or
other proprietary notice from the Software or Related Materials, and
will not remove the same from copies of the Software and Related
Materials received under this Agreement or any back-up copy of the
Software created in accordance with this Agreement. Customer will also
accurately and faithfully reproduce (i.e. not delete) all reasonable and
customary proprietary notices of IONA on any portion of the Software
that is incorporated in Developed Software (as defined in Section 4
below) such that Customer's end-users will be informed that the
Developed Software contains materials proprietary to and copyrighted by
IONA. Customer, however, will have no obligation to include any IONA
copyright or proprietary notices on the media label or notice screen
display or boot up screen of the Developed Software, provided that
Customer marks Developed Software with its own copyright notice. Except
as specifically permitted by this Agreement, Customer may not reproduce
any portion of the Software or Related Materials.
3. DEVELOPMENT LICENSE
3.1 "Development Software" means the development environment of the
Products (including updates, if any received in connection with
support) which is used in the construction of software
applications by Customer. Development Software is that portion of
the Software which excludes the Runtime Components (as defined
below).
3.2 "Developer" means a person who uses the Development Software and
Related Materials in connection with the development of
CORBA-based software applications, programs or components on the
operating system platform(s) set forth on Schedule A (as may be
amended from time to time) and in accordance with the terms and
conditions of this Agreement and its Schedule(s) (the "Permitted
Purpose"). Once a person becomes a Developer, he or she remains
so until he or she (i) ceases to be an employee or consultant of
Customer or (ii) ceases use or is reasonably expected to cease
use of the Development Software for a continuous period of 180
days. In either of these cases, Customer may substitute a
different individual for such Developer for no extra fee.
3.3 Subject to the terms and conditions of this Agreement, and
payment of the appropriate license fees as set forth on Schedule
A, IONA hereby grants to Customer a nonexclusive,
nontransferable, world-wide, perpetual, limited license to use
the Development Software and Related Materials solely for the
Permitted Purpose. Customer acknowledges and agrees that the
foregoing license does not include additional operating system
platforms.
Page 1
3
3.4 Customer further agrees that a license fee must be paid by
Customer to IONA for each and every employee or consultant of
Customer (excluding consultants supplied by IONA) who is or has
been a Developer. In no event may the number of Developers exceed
the number for which license fees have been received by IONA.
Upon request, Customer agrees to certify in writing that Customer
has paid for a sufficient number of license fees for each
Developer. IONA will have the right, with reasonable notice,
during normal business hours, at IONA's sole expense, and in as
non-disrupting a manner as possible, to audit Customer's
compliance with this Section but not more than two times in any
twelve (12)-month period. If in IONA's sole discretion Customer
has or may have an insufficient number of Developer's licenses,
IONA may appoint a mutually acceptable independent auditor to
conduct an audit; if the number of Developers as determined by
the independent audit is greater than [***] more than represented
by Customer, Customer will purchase Developers' licenses for each
such Developer and reimburse IONA the costs incurred for that
audit. Any amounts shown to be due to IONA following any audit
conducted by IONA shall be paid not later than [***] following
the date the auditors' report is made available to Customer and
shall include interest payments accrued at the rate of [***] per
annum during the applicable period covered by the audit. Any and
all information obtained in the course of such audit shall be
treated as Customer's Confidential Information (as defined below)
by IONA and the auditor.
3.5 The source code of the Software and design documentation are
proprietary trade secrets of IONA, its suppliers and/or
licensors, are Confidential Information (defined below), are
never considered part of the Software, and are neither delivered
to Customer nor under any circumstances licensed to Customer
hereunder (with the exception of certain pieces of demonstration
code and certain header files included in the Software).
3.6 If Customer has license(s) to previous versions of the Software
and the Software licensed hereunder is provided to Customer as an
upgrade, the license granted hereunder does not correct or excuse
violations of such previous licenses; to the extent that an
earlier license is terminable or terminated by IONA for breach by
Customer, this license may in IONA's sole discretion be
terminated simultaneously.
4. RUNTIME LICENSE
4.1 The term "Developed Software," as used herein, means any
application or program developed by Customer using the Software
pursuant to this Agreement on the operating system platform(s)
set forth on Schedule A.
4.2 The term "Runtime Components," as used herein, means any software
program or components of the Software (including updates to the
Software) which are embedded or incorporated in any Developed
Software developed by Customer or which are used in the execution
of Customer's Developed Software.
4.3 The term "CPU," if used herein, means a single Central Processing
Unit. For purposes of license grant, CPUs on multiple-CPU
machines will be counted separately.
4.4 IONA hereby grants to Customer, subject to the conditions herein,
a worldwide license to use, copy and distribute for use to third
party end-users the Runtime Components ("Runtime License"), but
solely as (i) part of the Developed Software owned by Customer,
(ii) for use with the Developed Software, and (iii) for execution
to the extent Customer has paid the applicable license
---------------------
*** Confidential Treatment has been requested for certain redacted
provisions of this agreement. The redacted provisions are identified by three
asterisks, enclosed by brackets and underlined. The confidential portion has
been filed separately with the Securities and Exchange Commission.
Page 2
4
fees. Third party end-users do not have rights of onward distribution,
and Customer must ensure that any such third party end-users have agreed
to be bound by terms and conditions no less strict than in this
Agreement and in the event of a breach of such terms and conditions,
Customer will immediately inform IONA and will assist IONA in enforcing
or allow IONA to enforce such terms and conditions. Customer may
distribute the Runtime Components through distributors provided that
such distributors are bound by the terms herein and that Customer
remains ultimately responsible for preventing any breaches hereof.
4.5 Customer further agrees that the Runtime License granted herein
does not give Customer or any other party any rights other than
those specifically granted herein, and that such License
specifically does not grant the Customer or any other party the
rights to:
- execute the Orbix IDL compiler;
- develop and link programs with the Orbix libraries or classes;
or
- read and use the Orbix header files.
4.6 Customer agrees to pay the runtime license fees set forth on
Schedule B.
4.7 Customer must have an industry standard and commercially
reasonable process in place to ensure that the appropriate
runtime license fees have been tracked and paid. Customer will,
upon the request of IONA, certify in writing to IONA the number
of Runtime Licenses in use. Executing, or permitting the
execution of, Developed Software for which the appropriate
runtime license fees have not been paid is a violation of this
Agreement, except for use of the Developed Software for
demonstration purposes or in the case of beta versions of the
Developed Software for which Customer does not charge any fees
(as set forth herein). IONA will have the right, with reasonable
notice, during normal business hours, at IONA's sole expense, and
in as non-disrupting a manner as possible, to audit Customer's
compliance with this Section but not more than two times in any
twelve (12)-month period. If in IONA's sole discretion reasonable
determination Customer has or may have paid insufficient runtime
license fees, IONA may appoint a mutually acceptable independent
auditor to conduct an audit. If the amount of runtime license
fees due IONA as determined by the independent audit is greater
than [***] more than represented by Customer, Customer will remit
the runtime license fees determined to be due by the auditor and
reimburse IONA the costs incurred for that audit. Any amounts
shown to be due to IONA following any audit conducted by IONA
shall be paid not later than [***] following the date the
auditors' report is made available to Customer, and shall include
interest payments accrued at the rate of [***] per annum during
the applicable period covered by the audit. Any and all
information obtained in the course of such audit shall be treated
as Customer's Confidential Information (as defined below) by IONA
and the auditor.
4.8 If requested by IONA, Customer will provide to IONA quarterly
reports of actual sales and non-binding forecasts of estimated
sales of the Developed Software under this Agreement for each
quarter covered hereby. The forecasts of estimated sales will be
prepared in good faith, reasonably accurate and detailed, and
will be transmitted by means of a mutually agreeable method and
format. Each quarterly report/forecast will be delivered not
later than the last business day of the First month of each
calendar quarter; the report shall cover the quarter just closed
and the forecast shall cover the quarter just underway. Such
reports and forecasts shall be treated as Customer's Confidential
Information (as defined below) by IONA.
---------------------
*** Confidential Treatment has been requested for certain redacted
provisions of this agreement. The redacted provisions are identified by three
asterisks, enclosed by brackets and underlined. The confidential portion has
been filed separately with the Securities and Exchange Commission.
Page 3
5
5. COPY AND OTHER RESTRICTIONS AND CONFIDENTIALITY
5.1 Without having to pay a fee Customer may make copies of the
Development Software in machine-readable, object code form, as
permitted by applicable law, solely for backup, disaster recovery
or archival purposes, provided that such copies of the
Development Software will include all applicable copyright,
trademark and other proprietary notices of IONA in accordance
with Section 2 above. Customer may not copy any of the Related
Materials. IONA will provide one set of Related Materials for
each Developer, and Customer may obtain additional copies of any
Related Materials from IONA upon payment of the prices in effect
at the time of ordering.
5.2 Customer will not display, disclose or sublicense the Development
Software to third parties (except that it may be shown to
Customer's consultants, who will be considered a Developer and
will comply with the terms of this Agreement), and also will not
rent, lease, loan, modify, adapt, translate, reverse engineer,
disassemble or decompile the Product or any portion thereof, or
create derivative works of the Product (except for derivative
works that are Developed Software), even for purposes of
interoperability or error correction. If Customer wishes
information relating to the Software for purposes of ,achieving
interoperability with independently created computer software,
Customer may make a written request to IONA for such information.
Customer will promptly report to IONA any actual or suspected
violation of this section and will take further steps as may
reasonably be requested by IONA to prevent or remedy any such
violation.
5.3 "Confidential Information" shall mean: (i) the source code of the
Software; (ii) any materials or information marked as.
confidential (or described as confidential at the time of oral
disclosure and summarized in writing and sent to the receiving
party within thirty (30) days of disclosure, with the appropriate
markings) at the time of disclosure; and (iii) the pricing terms
of this Agreement. "Confidential Information" shall not include
information that: (i) is or becomes generally known or available
by publication, commercial use or otherwise through no fault of
the receiving party; (ii) is demonstrably known by the receiving
party at the time of disclosure and is not subject to
restriction; (iii) is independently developed or learned by the
receiving party; (iv) is lawfully obtained from a third party
that has the right to make such disclosure; or (v) is made
generally available by the disclosing party without restriction
on disclosure.
5.4 Each party shall protect the other's Confidential Information
from unauthorized dissemination and use the greater of industry
standard precautions or degree of, care that such party uses to
protect its own like information. Neither party will use the
other's Confidential Information for purposes other than those
necessary to directly further the purposes of this Agreement.
Neither party will disclose to third parties the other's
Confidential Information without the prior written consent of the
other party. Except as expressly provided in this Agreement, no
ownership or license rights is granted in any Confidential
Information.
5.5 The parties' obligations of confidentiality under this Agreement
shall not be construed to limit either party's right to
independently develop or acquire products without use of the
other party's Confidential Information. Further, either party
shall be free to use for any purpose the Residuals (as defined
below) resulting from access to or work with such Confidential
Information, provided that such party shall maintain the
confidentiality of the Confidential Information as provided
herein. The term "Residuals" means non-tangible ideas, concepts,
know-how or techniques contained in or embodied by the
Confidential Information, which may be retained (without the aid
of notes or like memory aids) by persons who have had authorized
access to the Confidential Information. Neither party shall have
any obligation to limit or restrict the assignment of such
persons or to pay royalties for any work resulting from the use
of Residuals. However, the foregoing shall not be deemed to grant
to either party a license under the other party's copyrights or
patents. The above rights of the parties to use the Residuals of
its employees are for its own purposes only and may not be
assigned, sub-licensed or otherwise transferred to any third
party
Page 4
6
without the prior written consent of the other party which
consent shall not be unreasonably withheld; provided, however
that such consent shall not be required if the assigning party
assigns, sub-licenses or otherwise transfers the residuals to a
wholly-owned subsidiary or to an affiliate in connection with or
as the result of a merger or other transaction in which the
assigning party is the surviving entity or which does not
constitute an actual or effective change in control of the
assigning party.
6. GOVERNMENT END-USERS
The Software and the Related Materials are "commercial items" as that
term is defined in 48 C.F.R. 2. 101 (October 1995) consisting of
"commercial computer software" and "commercial computer software
documentation" as such terms are used in 48 C.F.R. 12.212 (September
1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1,
227.7202-3 and 227.7202-4 (June 1995), if the licensee hereunder is the
U.S. Government or any agency or department thereof, the Software and
the Related Materials are licensed hereunder (i) only as a commercial
item, and (ii) with only those rights as are granted to all other end
users pursuant to the terms and conditions of this Agreement.
7. SUPPORT
Customer will purchase from IONA the support services for the Software
set forth on Schedule A and B, if any, and IONA shall provide such
service to Customer. Fees for the support services, if any, are set
forth on Schedule A and B and the terms and conditions of the support
services are set forth on Schedules C and E.
8. LIMITED WARRANTY
8.1 IONA warrants that the medium on which the Software is recorded
is free from defects in materials or workmanship under normal use
and service for a period of ninety (90) days from the date
Customer has obtained the Software. If Customer discovers any
physical defects in the medium on which the Software is recorded,
IONA will replace such medium at no charge to Customer, provided
that Customer has paid for the Software and returns the item to
be replaced to IONA during the ninety (90) day period after
Customer has obtained the Software. This warranty gives Customer
specific legal rights. Customer may also have rights, which vary
from jurisdiction to jurisdiction. THIS RIGHT OF REPLACEMENT IS
CUSTOMER'S EXCLUSIVE REMEDY AND IONA'S ONLY LIABILITY FOR ANY
DEFECTS IN THE MEDIUM.
8.2 Licensor warrants that the Software is Y2K compliant (as defined
in this Section). Y2K compliant means that the Software (i) will
(to the extent applicable) correctly store, represent, and
process (including sort) all dates (including single and multi
century formulas and leap year calculations), such that errors
will not occur when the date being used is in the year 2000, or
in a year preceding or following the year 2000, and (ii) will not
cause or result in an abnormal termination or ending in
connection with the processing set forth in (i) or due to the
occurrence of a date in the year 2000, or in a year preceding or
following, the year 2000.
8.3 IONA warrants that it has taken reasonable precautions, including
without limitation using "best of breed" commercially available
technology, to prevent the introduction into the Software of any
"viruses," "time bombs," "Trojan horses," or other intentionally
destructive or disabling devices.
8.4 THE FOREGOING PARAGRAPHS STATE THE COMPLETE WARRANTY GIVEN TO
CUSTOMER. IONA SPECIFICALLY DISCLAIMS ANY WARRANTY THAT THE
FUNCTIONS CONTAINED IN THE SOFTWARE OR THE RESULTS OF USE WILL
MEET CUSTOMER'S REQUIREMENTS, OR THAT THE OPERATION OF THE
SOFTWARE XXXX
Xxxx 5
7
BE UNINTERRUPTED OR ERROR FREE. EXCEPT AS EXPRESSLY SET FORTH
ABOVE, THE PRODUCT IS PROVIDED TO CUSTOMER "AS IS" WITHOUT
WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR
OTHERWISE, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES
OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. THE
ENTIRE RISK AS TO THE SUITABILITY, QUALITY AND PERFORMANCE OF THE
PRODUCT IS WITH CUSTOMER AND NOT WITH IONA. SOME JURISDICTIONS DO
NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SUCH EXCLUSION
MAY NOT APPLY TO YOU.
9. INTELLECTUAL PROPERTY INFRINGEMENT INDEMNITY
9.1 Any action brought against Customer or its end-users on a claim
that the Products infringe any patent, copyright, or other
intellectual property rights or the trade secret or the
proprietary rights of a third party will be defended on behalf of
Customer by IONA at its expense. IONA will indemnify Customer and
pay all costs, damages, liabilities and settlements and
reasonable legal fees and court costs awarded against Customer in
such action or settlement thereof and which are attributable to
such claim provided always that Customer notifies IONA promptly
in writing of each claim and IONA may control fully the defense
and/or the settlement of such claim.
9.2 Without prejudice to Sub-Section 9.1, should the Products
become, or in IONA's reasonable opinion are likely to become, the
subject of a claim as aforesaid then IONA may, at its sole
expense, either: (i) procure for Customer the right to continue
using the Products to the full extent licensed herein; (ii)
replace the Products with non-infringing, but functionally
equivalent, material; (iii) modify the Products to make them
non-infringing, but equivalent in functionality, performance and
compatibility; or if after reasonable efforts is unable to
provide one of the three preceding remedies (iv) remove the
Products and refund to Customer all fees and sums paid by
Customer in respect thereof.
9.3 IONA will have no liability for any claim of infringement based
on: (a) use of other than a current release of the Products
provided to Customer if such infringement would have been avoided
by use of a current release, or (b) use or combination of the
Products with non-IONA programs or data if such infringement
would have been avoided by the use of the Products without those
other programs or data. The foregoing states the entire liability
of IONA with respect to any claim of infringement regarding the
Products.
10. LIMITED LIABILITY
EXCEPT WITH RESPECT TO IONA'S INTELLECTUAL PROPERTY INDEMNIFICATION, IN
NO EVENT WILL EITHER PARTY, ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY
INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY
DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS
PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, DATA,
GOODWILL OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO
USE THE SOFTWARE OR OTHERWISE UNDER THIS AGREEMENT, EVEN IF FORESEEABLE
OR IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN
NO EVENT WILL IONA BE RESPONSIBLE OR HELD LIABLE FOR ANY DAMAGES
RESULTING FROM PHYSICAL DAMAGE TO TANGIBLE PROPERTY OR DEATH OR INJURY
OF ANY PERSON EXCEPT WHERE ARISING FROM IONA'S NEGLIGENCE. BECAUSE SOME
JURISDICTIONS DO NOT ALLOW CERTAIN OF THE ABOVE EXCLUSIONS OR
LIMITATIONS OF LIABILITY, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
EXCEPT FOR LIABILITY UNDER SECTION 9 ABOVE, IF EITHER PARTY IS HELD
LIABLE UNDER THIS AGREEMENT, SUCH PARTY'S, ITS SUPPLIERS AND LICENSORS'
LIABILITY WILL BE LIMITED TO THE AGGREGATE AMOUNTS PAID BY THE CUSTOMER
UNDER THIS AGREEMENT.
Page 6
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11. ASSIGNMENT
This Agreement and any rights granted hereunder may not be assigned,
sub-licensed or otherwise transferred by Customer to any third party
without the prior written consent of IONA, which consent shall not be
unreasonably withheld or delayed; provided, however that such consent
shall not be required if Customer assigns, sub-licenses or otherwise
transfers this Agreement or any rights granted herein to a wholly-owned
subsidiary or to a business unit or corporate affiliate in connection
with or as the result of a merger or like transaction provided that the
surviving entity is not a competitor of IONA (any entity reasonably
defined by IONA as offering products or services which offer similar
functionality or serve similar purposes as IONA's products or services)
in which case such transfer shall be subject to IONA's written consent
(which consent shall not be unreasonably withheld, conditioned or
delayed). IONA may assign or transfer its rights and obligations under
this Agreement at any time without notice to or the consent of Customer
provided the assignee is bound by and complies with the terms and
conditions of this Agreement.
12. DURATION
This Agreement will be effective from the date of execution by the
parties and will remain in force for a period of three (3) years unless
terminated by IONA as provided in Section 13.
13. ESCROW
IONA agrees to deposit and maintain with IONA's escrow agent (Data
Securities International) during the term of this Agreement all
fully-commented Source Code to the IONA Products licensed hereunder and
related documentation, manuals, tools and other materials used by IONA
in the maintenance or support of the such IONA Products ("Escrow
Materials"). IONA shall update the Escrow Materials during the term of
this Agreement promptly as such Escrow Materials become available. The
escrow agent's annual maintenance fees shall be borne by Customer and
IONA shall bear all fees associated with establishment of the escrow
account. IONA grants Customer a non-exclusive, non-transferable, limited
license to use the Escrow Materials for technical support purposes,
including, but not limited to, development of fixes for the Products
upon release of the Escrow Materials from escrow to Customer. Customer
shall be listed as a beneficiary of the escrow of the Escrow Account and
shall be entitled to receive a copy of the Escrow Materials if:
(a) IONA ceases to do business in the ordinary course, with the
exception of a permitted assignment, becomes insolvent or becomes
the subject of a bankruptcy case (which case is not dismissed
within 90 days), is unable to pay its debts as they fall due or
makes an assignment for the benefit of its creditors; or
(b) IONA announces a cessation of support for the IONA Product
(other than in accordance with IONA's standard de-support policy,
as set forth in Schedule C, Section 3 "Version Support") and
there is no third party support available on commercially
reasonable terms for the Escrow Materials; or
(c) IONA is in persistent and material breach of the terms of
this license agreement or any support agreement between the
parties and is not making prompt, continuous and good faith
efforts to remedy such breach.
14. TERMINATION
14.1 In addition to the termination provisions of Section 3.6 herein,
this Agreement and the license granted hereunder may be
terminated by IONA upon written notice to Customer if Customer
Page 7
9
breaches any of the provisions of this Agreement, which breach
has not been remedied within thirty (30) days of notification
thereof.
14.2 Upon termination of this Agreement and of the license granted
hereunder, Customer will cease any further use of the Software,
and must return to IONA or destroy, as requested by IONA, all
copies of the Software and Related Materials in any form in
Customer's possession or control.
14.3 All licenses granted by Customer in respect of Developed Software
will continue in full force and effect in accordance with this
Agreement, notwithstanding the expiration hereof.
14.4 The provisions of Sections 1, 2, 5, 8, 9, and 10 through IS and
the definitions of this Agreement will survive the termination of
this Agreement (for any reason). Customer must promptly pay to
IONA any amounts not reasonably disputed which are payable by
Customer.
15. EXPORT ADMINISTRATION ACT.
Customer agrees that unless prior written authorization is obtained from
the relevant governmental authority, it will not export, re-export, or
transship, directly or indirectly, the Product or any technical data
disclosed or provided to Customer, or the direct product of such
technical data to or from any other country as to which there is an
applicable embargo or other trade restriction imposed by the US or other
Government.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Page 8
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15. GENERAL
15.1 AMENDMENT; WAIVER: No modification or waiver of any provision of
this Agreement or any of its Schedules will be binding on either
party unless specifically agreed upon in a writing signed by both
parties hereto. Any failure or delay by IONA or Customer to
exercise or enforce any of the rights or remedies granted
hereunder will not operate as a waiver thereof. No waiver by IONA
or Customer of any breach of this Agreement will operate as a
waiver of any other or subsequent breach
15.2 FORCE MAJEURE: Neither party shall be liable for any delay in
meeting or for failure to meet any of its obligation under this
Agreement due to any cause outside its reasonable control,
including, without limitation, strikes, lock-outs, Acts of God,
war, riot, malicious acts of damage, fire, acts of any government
authority, failure of the public electricity supply, failure or
delay on the part of any subcontractor beyond the subcontractor's
reasonable control.
15.3 NOTICES: All notices and requests in connection with this
Agreement shall be given or made in writing to the parties' Legal
Departments at the addresses first set forth for Customer and
IONA above, or to such other address as may be specified in
writing from time to time, shall be hand delivered, sent by means
of an overnight courier which provides a tracking number, or
deposited in the US Mail, postage prepaid, certified or
registered, return receipt requested and shall be deemed given on
the day of receipt by the respective party.
15.4 SEVERABILITY: If any provision of this Agreement is found invalid
or unenforceable, that provision will be reformed construed and
enforced to the maximum extent permissible, and the other
provisions of this Agreement will remain in full force and
effect.
15.5 LAW AND JURISDICTION: This Agreement will be governed by and
construed in accordance with the laws of the Commonwealth of
Massachusetts without regard to its choice of law provisions.
15.6 ENTIRE AGREEMENT: Customer has read this Agreement and both
parties agree to be bound by its terms, and Rather agrees that
this Agreement (including Schedules) constitutes the complete and
entire agreement of the parties and supersedes all previous
shrink wrap licenses relating to the Software, communications,
oral or written, and all other communications between them
relating to the subject matter hereof No representations or
statements of any kind made by either party, which are not
expressly stated herein, will be binding on such party. If any
provision of a Schedule conflicts with the Agreement, they shall
be read together so as to best effectuate the intent of the
parties, but if this is not possible, the terms of this Agreement
shall control.
FOR AND ON BEHALF OF IONA FOR AND ON BEHALF OF ACCELERATED NETWORKS
Signed /s/ Xxxxxx X. Xxxxxx Signed /s/ Xxxx Xxxxxx
------------------------- -----------------------------------
Name Xxxxxx X. Xxxxxx Name Xxxx Xxxxxx
------------------------- -----------------------------------
Title Senior Vice President Title Vice President Software Development
------------------------- -----------------------------------
Date 12/17/99 Date 12/9/99
------------------------- -----------------------------------
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IONA OEM ORBIX(R) DEVELOPMENT AND RUNTIME LICENSE AGREEMENT
SCHEDULE A - DEVELOPMENT FEES AND ASSOCIATED SUPPORT
1. PRODUCTS AND ENVIRONMENTS COVERED
Customer may order IONA Products under the terms, conditions and pricing
contained in this Agreement for the term of this Agreement, unless earlier
terminated as provided herein.
Customer shall have the use of development licenses of IONA Products across the
operating system environments in the table below for use in connection with
Customer's products. The Named Development Platforms are as follows:
-------------------------------------------------------------------------------------------------
OPERATING QTY. QTY. TOTAL NEW
SYSTEM EXISTING NEW LICENSE LICENSE
IONA PRODUCTS ENVIRONMENTS LICENSES LICENSES FEE FEES
-------------------------------------------------------------------------------------------------
Orbix 3.0 Windows NT/95 0 0 [***] $?
(includes: Names, COMet,
WonderWall, CGT)
-------------------------------------------------------------------------------------------------
Orbix 3.0 Solaris 0 0 [***] $?
(includes: Names, WonderWall, CGT)
-------------------------------------------------------------------------------------------------
Orbix 3.0 HP/UX 0 0 [***] $?
(includes: Names, WonderWall, CGT)
-------------------------------------------------------------------------------------------------
Orbix 3.0 [specify 0 0 [***] $?
(includes: Names, WonderWall, CGT) other]
-------------------------------------------------------------------------------------------------
Orbix Web Prof. Edition 3.2 Windows NT/95 0 0 [***] $?
(includes: Names, WonderWall)
-------------------------------------------------------------------------------------------------
Orbix Web Prof. Edition 3.2 Solaris 0 0 [***] $?
(includes: Names, WonderWall)
-------------------------------------------------------------------------------------------------
Orbix Web Prof. Edition 3.2 HP/UX 0 0 [***] $?
(includes: Names, WonderWall)
-------------------------------------------------------------------------------------------------
Orbix OTM3 Windows NT 0 0 [***] $?
-------------------------------------------------------------------------------------------------
Orbix OTM3 Solaris 0 0 [***] $?
-------------------------------------------------------------------------------------------------
Orbix OTM3 HP/UX 0 0 [***] $?
-------------------------------------------------------------------------------------------------
Orbix OTM3 [specify 0 0 [***] $?
other]
-------------------------------------------------------------------------------------------------
Orbix Talk Windows NT/95 0 0 [***] $?
-------------------------------------------------------------------------------------------------
Orbix Talk UNIX [specify] 0 0 [***] $?
-------------------------------------------------------------------------------------------------
Orbix Trader [specify] 0 0 [***] $?
-------------------------------------------------------------------------------------------------
Orbix Notification [specify] 0 0 [***] $?
-------------------------------------------------------------------------------------------------
TOTAL OF NEW DEVELOPMENT LICENSE $?
FEES:
-------------------------------------------------------------------------------------------------
*Orbix Notification and Orbix Trader require a minimum of one Orbix Notification
and/or Orbix Trader Runtime License (for a 1 or 2 CPU machine) fee be paid in
lieu of an actual development license. If the OrbixNotification or OrbixTrader
product is to be deployed on a larger machine (greater than 2 CPUs), then the
appropriate Runtime License Fee (from Schedule B Section 2 End-User Pricing
Model Table A) must be paid for the machine that will be deployed.
2. NEW DEVELOPMENT LICENSES SUMMARY
These prices are valid for 30 days from date of delivery of this Agreement.
---------------------
*** Confidential Treatment has been requested for certain redacted
provisions of this agreement. The redacted provisions are identified by three
asterisks, enclosed by brackets and underlined. The confidential portion has
been filed separately with the Securities and Exchange Commission.
Page 10
12
3. NEW DEVELOPMENT LICENSES SUPPORT MAINTENANCE SUMMARY***
The new Named Development Platforms for Support are as follows:
------------------------------------------------------------------------------------------
SUPPORT
QTY. QTY. FEE PER TOTAL NEW
OPERATING SYSTEM EXISTING NEW NEW SUPPORT
IONA PRODUCTS ENVIRONMENTS LICENSES LICENSES LICENSE FEES
------------------------------------------------------------------------------------------
Orbix 3.0 Windows NT/95 0 0 [***] $?
------------------------------------------------------------------------------------------
Orbix 3.0 Solaris 0 0 [***] $?
------------------------------------------------------------------------------------------
Orbix 3.0 HP/UX 0 0 [***] $?
------------------------------------------------------------------------------------------
Orbix 3.0 [specify other] 0 0 [***] $?
------------------------------------------------------------------------------------------
OrbixWeb Prof. Edition 3.2 Windows NT/95 0 0 [***] $?
------------------------------------------------------------------------------------------
OrbixWeb Prof. Edition 3.2 Solaris 0 0 [***] $?
------------------------------------------------------------------------------------------
OrbixWeb Prof. Edition 3.2 HP/UX 0 0 [***] $?
------------------------------------------------------------------------------------------
OrbixOTM 3 Windows NT 0 0 [***] $?
------------------------------------------------------------------------------------------
OrbixOTM 3 Solaris 0 0 [***] $?
------------------------------------------------------------------------------------------
OrbixOTM 3 HP/UX 0 0 [***] $?
------------------------------------------------------------------------------------------
OrbixOTM 3 [specify other] 0 0 [***] $?
------------------------------------------------------------------------------------------
Orbix Talk Windows NT/95 0 0 [***] $?
------------------------------------------------------------------------------------------
Orbix Talk UNIX [specify] 0 0 [***] $?
------------------------------------------------------------------------------------------
Orbix Trader [specify] 0 0 [***] S?
------------------------------------------------------------------------------------------
Orbix Notification [specify] 0 0 [***] $?
------------------------------------------------------------------------------------------
TOTAL OF NEW SUPPORT
LICENSES: $?
------------------------------------------------------------------------------------------
Support is priced per annum at [***] of the above Developer License Fee with a
minimum support fee of [***] per-product. IONA shall provide support according
to the terms and conditions set forth on Schedule C attached hereto, and
Schedule E, if elected by Customer.
* Support/Maintenance for OrbixNotification or OrbixTrader is based on [***] of
the total Runtime License Fees paid for deployment licenses, with a minimum
annual Support fee of [***] (based on the 1-2 CPU machine runtime pricing).
Annual OEM Elevated Support option (Schedule E) can replace Standard Support
Schedule C. Pricing and Terms & Conditions can be found in Schedule E of this
Agreement.
4. PAYMENT TERMS
Payments due under this Agreement shall be paid by the earlier of the due date
as identified in Schedule D or within [***] of Customer's receipt of invoice.
5. ORBIXWARE PROGRAM
IONA agrees to waive the first year base-level membership fee for Customer to
join the OrbixWare Partnership Program.
6. PRODUCT DELIVERY
IONA shall deliver the Products to Customer within five days of full execution
and delivery of this Agreement.
---------------------
*** Confidential Treatment has been requested for certain redacted
provisions of this agreement. The redacted provisions are identified by three
asterisks, enclosed by brackets and underlined. The confidential portion has
been filed separately with the Securities and Exchange Commission.
Page 11
13
7. DEVELOPMENT LICENSE MAJOR RELEASE UPGRADES
Customer, at its option, can pay [***] of then-current list price for Major
Release Upgrades to the IONA Development Products identified in this Agreement.
An example of a Major Release Upgrade would be from OrbixWeb 3.x to OrbixWeb 4.0
or OrbixNotification Lx to OrbixNotification 2.0. If Customer is not current in
payment of Support/Maintenance renewals, Major Release Upgrades will only be
available by payment of the full license fee for the desired products.
8. LEVEL OF SUPPORT REQUIRED
Tick here where standard support is selected as per Schedule C X
Tick here where elevated support is selected as per Schedule E
---------------------
*** Confidential Treatment has been requested for certain redacted
provisions of this agreement. The redacted provisions are identified by three
asterisks, enclosed by brackets and underlined. The confidential portion has
been filed separately with the Securities and Exchange Commission.
Page 12
14
IONA OEM ORBIX(R) DEVELOPMENT AND RUNTIME LICENSE AGREEMENT
SCHEDULE B - RUNTIME FEES AND ASSOCIATED SUPPORT
1. RUNTIME LICENSE
This license covers the distribution of the IONA Runtime Components within the
Customer's Developed Software in the following Named Applications: [ACCELERATED
NETWORKS AN-20, AN-30, AN-3200 SERIES].
2. INITIAL DEPLOYMENT PAYMENT FOR RUNTIME LICENSE USING IONA'S END-USER
PRICING MODEL
- The IONA End-User Pricing Model can be adapted to map to Customer's
product pricing model.
- There is a minimum [***] Runtime License Fee Initial Deployment Payment
requirement.
In consideration of Customer's execution of Agreement and delivery via fax of a
purchase order for the Schedule D fees by close of business on [OCTOBER 30,
1999], IONA will establish a Per-Machine licensing arrangement and allow
Customer to pay runtime license fees on a quarterly basis per the pricing
outlined in Table A.
Run-time licenses are defined on a per CPU basis for server and clients. If any
of the Orbix header files, libraries or classes are utilized by the client
portion of the application; Accelerated Networks is responsible for reporting
additional run-time licenses.
This Agreement covers the distribution of the IONA Products Runtime Components
associated with the IONA Development Products identified and licensed in
Schedule A within the Customer Named Applications set forth in Schedule B during
the term of this Agreement.
END-USER PRICING MODEL TABLE A
-----------------------------------------------------------------------------------------------
[***] [***] [***]
PAYMENT; PAYMENT; PAYMENT;
QTY. RUNTIME RUNTIME RUNTIME [***]
CPUS LICENSE LICENSE LICENSE PAYMENT;
IONA PRODUCT PER FEE PER FEE PER FEE PER RUNTIME LICENSE
RUNTIME COMPONENTS MACHINE MACHINE MACHINE MACHINE FEE PER MACHINE
-----------------------------------------------------------------------------------------------
Orbix, OrbixWeb 1 or 2 [***] [***] [***] [***]
-----------------------------------------------------------------------------------------------
Orbix, OrbixWeb 3-4 [***] [***] [***] [***]
-----------------------------------------------------------------------------------------------
Orbix, OrbixWeb 5-8 [***] [***] [***] [***]
-----------------------------------------------------------------------------------------------
Orbix, OrbixWeb 9-16 [***] [***] [***] [***]
-----------------------------------------------------------------------------------------------
Orbix, OrbixWeb 17-32 [***] [***] [***] [***]
-----------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------
OrbixOTM, OrbixTalk 1 or 2 [***] [***] [***] [***]
-----------------------------------------------------------------------------------------------
OrbixOTM, OrbixTalk 3-4 [***] [***] [***] [***]
-----------------------------------------------------------------------------------------------
OrbixOTM, OrbixTalk 5-8 [***] [***] [***] [***]
-----------------------------------------------------------------------------------------------
OrbixOTM, OrbixTalk 9-16 [***] [***] [***] [***]
-----------------------------------------------------------------------------------------------
OrbixOTM, OrbixTalk 17-32 [***] [***] [***] [***]
-----------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------
OrbixNotification, 1 or 2 [***] [***] [***] [***]
OrbixTrader
-----------------------------------------------------------------------------------------------
OrbixNotification, 3-4 [***] [***] [***] [***]
OrbixTrader
-----------------------------------------------------------------------------------------------
---------------------
*** Confidential Treatment has been requested for certain redacted
provisions of this agreement. The redacted provisions are identified by three
asterisks, enclosed by brackets and underlined. The confidential portion has
been filed separately with the Securities and Exchange Commission.
Page 13
15
IONA OEM ORBIX(R) DEVELOPMENT AND RUNTIME LICENSE AGREEMENT
-----------------------------------------------------------------------------------------------
OrbixNotification, 5-8 [***] [***] [***] [***]
OrbixTrader
-----------------------------------------------------------------------------------------------
OrbixNotification, 9-16 [***] [***] [***] [***]
OrbixTrader
-----------------------------------------------------------------------------------------------
OrbixNotification, 17-32 [***] [***] [***] [***]
OrbixTrader
-----------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------
Orbix for Sequent, 1 or 2 [***] [***] [***] [***]
Orbix for OpenVMS
-----------------------------------------------------------------------------------------------
Orbix for Sequent, 3-4 [***] [***] [***] [***]
Orbix for OpenVMS
-----------------------------------------------------------------------------------------------
Orbix for Sequent, 5-8 [***] [***] [***] [***]
Orbix for OpenVMS
-----------------------------------------------------------------------------------------------
Orbix for Sequent, 9-16 [***] [***] [***] [***]
Orbix for OpenVMS
-----------------------------------------------------------------------------------------------
Orbix for Sequent, 17-32 [***] [***] [***] [***]
Orbix for OpenVMS
-----------------------------------------------------------------------------------------------
Customer shall pay a [***] guaranteed non-refundable (except as provided in
Section 9.2) minimum runtime license fee (from End-User Pricing Model Table A)
as an Initial Deployment Payment to establish the "Runtime License Fee Per
Machine" as indicated in End-User Pricing Model Table A. The Initial Deployment
Payment shall represent a guaranteed non-refundable minimum Runtime License Fee
for the deployment of Developed Software from first commercial shipment of
Customer's Named Applications. After the first commercial shipment of Developed
Software and until expiration or termination of this Agreement, Customer shall
owe IONA the identified Runtime License Fee for license of Customer Named
Applications. Customer shall be entitled to utilize the Initial Deployment
Payment as a credit against future runtime license fees until the Initial
Deployment Payment is exhausted.
Customer acknowledges and agrees that a guaranteed non-refundable minimum
Runtime License Fee (the "Initial Deployment Payment") must be paid before any
deployment commences.
Customer shall provide IONA a quarterly Sales Report/Forecast by the final day
of the first month of each calendar quarter. The Sales Report will provide the
relevant sales data from the just-completed quarter and indicate end-user
account and products shipped, detailing what IONA components are embedded,
quantities of units licensed, Runtime License Fee per unit, total Runtime
License Fees due, and value of Initial Deployment Payment balance that remains
after deducting current runtime license fees owed. Once the Initial Deployment
Payment amount is exhausted, Customer must submit to IONA, in addition to the
Sales Report, a purchase order and payment for the runtime license fees due.
Additional Licenses beyond the initial pre-pay amount must be purchased in
minimum quantity blocks of 200 during the period of this contract. The Sales
Forecast will provide relevant data on expected licenses of IONA Runtime
Components for the current quarter. The Sales Reports and Sales Forecasts
provided to IONA by Customer shall be treated as Customer's Confidential
Information.
3. AGREEMENT EXPIRATION AND RENEWAL TERMS
Prior to the Expiration Date of this Agreement and assuming no termination of
this Agreement, the Parties shall negotiate in good faith the terms for its
renewal (or non-renewal). If the Parties have not reached mutually agreeable
renewal terms prior to the Expiration Date, the Agreement shall automatically
renew for a one-year term (the "Renewal Term") and the royalty rate applicable
to the Renewal Term shall be not more than one percentage point increase over
the royalty rate percentage, plus any applicable increases for optional add-on
products which have
---------------------
*** Confidential Treatment has been requested for certain redacted
provisions of this agreement. The redacted provisions are identified by three
asterisks, enclosed by brackets and underlined. The confidential portion has
been filed separately with the Securities and Exchange Commission.
Page 14
16
IONA OEM ORBIX(R) DEVELOPMENT AND RUNTIME LICENSE AGREEMENT
been subsequently licensed. Under the Per-machine runtime license fee scenario,
Customer will be obligated to pay at the then-current Per-machine license fee
rates.
4. ANNUAL MAINTENANCE FOR DEPLOYMENT ENVIRONMENTS
Annual Maintenance for the deployed Runtime Components is charged at a rate of
[***] of the Initial Deployment Payment amount. Upon contract execution,
Customer will pay [***] of the Initial Deployment Payment for first year
Maintenance. When the Initial Deployment Payment has been exhausted, each
quarterly Runtime License Fee payment shall be accompanied with the appropriate
Maintenance payment to cover I years' Maintenance on the additional deployed
runtime components.
5. EVALUATION AND NON-ROYALTY BEARING LICENSES
Customer may deploy without fee a reasonable number of copies of the Runtime
Components for evaluation, beta testing, demonstration, trial use or proof of
concept purposes, provided Customer receives no revenue from such evaluation
deployments. The term of such evaluation deployments may not exceed four (4)
months in duration (without prior consent of IONA, which consent shall not be
unreasonably withheld) and shall be pursuant to licensing terms not less strict
than those contained in Customer's current standard end user license agreement,
a copy of which is attached as Attachment 1.
Modules of Customer's product in which the Runtime Components are completely
disabled and non-functional shall not incur a royalty payment.
---------------------
*** Confidential Treatment has been requested for certain redacted
provisions of this agreement. The redacted provisions are identified by three
asterisks, enclosed by brackets and underlined. The confidential portion has
been filed separately with the Securities and Exchange Commission.
Page 15
17
IONA OEM ORBIX(R) DEVELOPMENT AND RUNTIME LICENSE AGREEMENT
SCHEDULE C - SUPPORT TERMS AND CONDITIONS
1. IONA OBLIGATIONS
1.1 IONA will provide an electronic mail Technical Support service for the
Customer between the hours of 9.00 am and 9.00 p.m. Eastern Standard Time (EST),
Monday to Friday, excluding Public Holidays. IONA will provide a single Internet
mail address to which all Technical Support queries may be directed.
1.2 IONA will provide a FAX Technical Support service for the Customer between
the hours of 9.00 am and 9.00 p.m. Eastern Standard Time (EST), Monday to
Friday, excluding Public Holidays. IONA will provide a single FAX number to
which all Technical Support queries may be directed.
1.3 Telephone Technical Support and Technical Support outside of the hours
specified in paragraphs 1.1 and 1.2 can be provided subject to written agreement
between IONA and the Customer on specific terms and fees payable.
1.4 For the duration of the period in which Customer has purchased support, IONA
will provide to the Customer, free of further charge, copies of Minor and Point
Releases to the Products. "Minor Release" shall mean the release of an IONA
Product where, if the product version number is designated as x.y.z, the digit
represented by "y" is changed to one digit higher. A Minor Release normally
includes minor feature and functionality changes and enhancements. "Point
Release" shall mean the release of an IONA Product where, if the product version
number is designated as x.y.z, the digit represented by `Y' is changed to one
digit higher. A Point Release normally consists of bug fixes and error
corrections.
1.5 Expedited resolution of software malfunctions can be provided subject to
written agreement between IONA and the Customer on specific terms and fees
payable.
1.6 IONA is not required offer the services of any named individual in respect
of the above Technical Support undertakings except as IONA and Customer may
specifically agree in writing.
2. CUSTOMER RESPONSIBILITIES
2.1 Customer will nominate one representative who will be the primary
representative for the purposes of technical support and will be the named
recipient of software updates. The Customer may change the nominated
representative at any time by notifying IONA in writing.
2.2 The Customer will direct initial support queries to the electronic mail
address or FAX number set forth below and will not direct such queries directly
to IONA personnel.
3. PAYMENT
3.1 All fees for technical support and maintenance for each year of support are
to be invoiced at the commencement of the year and shall be payable as set forth
in the Agreement.
4. CONTACT DETAILS
4.1 The IONA Technical Support FAX number is: x000-0-000 5244; or
x0 000 000 0000
4.2 The IONA Technical Support electronic mail address is: XXXXXXX@XXXX.XXX
Page 16
18
IONA OEM ORBIX(R) DEVELOPMENT AND RUNTIME LICENSE AGREEMENT
SCHEDULE D - PAYMENTS DUE UPON EXECUTION
All Payments are due [***] from execution of Agreement:
--------------------------------------------------------------------
License Fee for Schedule A items [***]
--------------------------------------------------------------------
Annual Support for Schedule A items [***]
--------------------------------------------------------------------
Initial Deployment Payment for Schedule B [***]
--------------------------------------------------------------------
Annual Support for Initial Deployment Payment for Schedule B [***]
--------------------------------------------------------------------
On-Site Consulting (5 days) [***]
Total: [***]
--------------------------------------------------------------------
Upon full Execution by Customer, Customer will provide to IONA a purchase order
for the total of the above items [***] and will be invoiced according to the
specified payment terms above.
---------------------
*** Confidential Treatment has been requested for certain redacted
provisions of this agreement. The redacted provisions are identified by three
asterisks, enclosed by brackets and underlined. The confidential portion has
been filed separately with the Securities and Exchange Commission.
Page 17
